On this application for rehearing, as on the original submission, the record and briefs in this cause have received proper attention.
As for appellees' fourth suggestion of error, viz. that this court erred in failing to hold that the mortgage of the Federal Land Bank was a valid claim against the property in controversy, it will suffice to say that the bank in its answer simply denied the averments of the bill and prayed that it be dismissed with costs. Such was the decree of the trial court. Counsel for the bank has read the opinion heretofore written in this cause to little purpose, if he has found in it anything tending to disturb the decree under review in so far as it affects the Federal Land Bank.
We continue to hold the opinion that the facts and circumstances — the record has been re-examined with a special view to this point — were such as, under the familiar law of this state, to put upon appellee Powe the burden of proving that the deeds under which he claims were the fair and free products of the grantor's volition, and that in this he has signally failed. The only effort to that end, worthy of prolonged reflection, is to be found in the evidence by which this appellee sought to prove that he had given the old man, his father, a fair price for the land. We are still satisfied with our conclusion that in this also appellee failed to sustain his defense.
In connection with the foregoing, appellee makes serious objection to our statement concerning interest. We are confirmed in our conclusion that the statement was substantially correct, and we now note, as a matter proper for consideration, that the money expended in improvements was borrowed on the credit of the old man's property and then charged to him with interest.
We may have charged the old man, appellee Powe's father, with a few years too many. Appellee's brief on rehearing calls attention to this. We now have it from appellee's brief — by fair inference — that his grantor was about 65 years of age at the date of the last conveyance. It is thus still evident that he had passed the prime of his manhood, nor can it be questioned that he had suffered misfortunes, physical and financial, well calculated greatly to magnify the burden of his years — a fact worthy of consideration in connection with the rest in deciding the issues presented by the record. Moreover, the statement of appellee's brief on original submission was that his grantor "was then [about the time of the second deed] almost 70 years old," and on the faith of that statement we thought we might safely proceed.
It is true, as appellee suggests, that we have not considered whether the deed to complainants (and appellee), by which the old man undertook to convey this farm to his four children, share and share alike, was procured by the undue influence of complainants or some of them. It may be enough to say that this matter was not put in issue by appellee's answer — appellee contenting himself with the averment that it was "procured," but whether by fair or foul means appellee does not say — and, further, it seems clear that appellee could not well afford to make the issue, for if, considering the meager opportunities complainants had for such an undertaking as compared with appellee, it had been proved that the old man's deed to all his children was the product of undue influence operating on a debilitated mind, that proof would have tended strongly to establish a state of mind on his part at variance with appellee's contention that previously he had been amply able to care for his own affairs and did in fact competently do so. So far as we are able to draw a conclusion, the deed to all the children *Page 679 was executed for the purpose of putting complainants in a position to file this bill, which seeks to make effective the expressed wish and purpose of the grantor as shown by his testimony in this cause. But, however that may be, the substance of appellee's charge against complainants in this connection, when taken at its true value, is that complainants, some or all of them, were, as compared with appellee, derelict in the performance of their filial duty, and for that reason not entitled to the consideration of the court of equity. We do not find it so; but there has heretofore appeared no occasion for an expression of our views as to the comparative merits of the parties in that respect. Even now it is aside from the true issue in the cause and is given the appearance of relevancy only by the remarks of counsel in their brief for rehearing.
Further, it is urged that, if the court persists in its determination to reverse the decree rendered in the court below, the cause should be remanded in order that appellee may have an opportunity to enforce a claim as creditor against the estate of J. A. Powe, deceased, for the amounts paid out by him for the benefit of deceased. But this suggestion, like that affecting the conveyance to complainants, comes too late. Appellee propounded no such claim and, upon the submission here, agreed that the estate of decedent was not interested, and that there need be no delay or expense incurred for the appointment of an administrator.
As for the suggestion that Mary Powe should have been represented by a guardian, it seems sufficient to say that the decree here is in her favor, so that a guardian could hardly better her estate so far as this litigation is concerned.
The court is of opinion that the application for a rehearing should be overruled, and it is accordingly so ordered.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.